Tags

Related Posts

Share This

Cease and Desist

Tonight one of my reviewers received a cease and desist from Jazan Wild, who also sued Heroes for copyright infringement.

To whom it may concern,

This is a cease and desist. “Carnival Of Souls” is a trademark owned by Jazan Wild and Wild alone has the exclusive right on the United States of America to use the mark in classes 16 and 41 of which a novel is included. Posting a chapter from a novel using this mark is a willful and malicious infringement of Wild’s mark. Please remove.

I hear he is making his way through the blog reviewers with this cease and desist. We posted a review of Melissa Marr’s book, not a chapter sample. I’m posting this for other blog reviewers. You do not have to be cowed by this or do a take down of your posts if you don’t want to. If you are afraid of repercussions you absolutely should do what you need to do. If the title of the book changes at the conclusion of the law suit we will change our post to reflect the change. This is obviously not legal advice as I am not a lawyer, I’m just openly stating what we will be doing here at .ORG.

I think it is sad that Jazan decided to reach out to blog reviewers like this. We, who do this for the love of literature and definitely not for the money. We, who probably would have liked his comic books if only asked to read them for review.

The lawsuit filed by Jazan Wild against HarperCollins Publishers over the use of the title “Carnival of Souls,” is completely without merit. “Carnival of Souls” has been used as the title of numerous books, films, songs, records and comic books since at least 1962, and Mr. Wild has no exclusive right to its use as the title of a creative work. HarperCollins will defend the suit fully. Furthermore, any claim that the use of a book title, in a review of that same work, infringes on a trademark is nonsensical.

Update 2: Jazan has been very forthcoming and nice and we can obviously say what we want in the comments section here but no name calling please :) This isn’t elementary school.

Update 3: Jazan’s lawyer has sent his statement. It is very long winded compared to Harper’s but since I posted Harper’s I feel obligated to post this. I think this is the most text I’ve ever had in one post.

CARNIVAL OF SOULS (Wild’s Attorney’s Statement)

I am the attorney representing Mr. Wild in the trademark infringement lawsuit that is the subject of many postings on this blog. Many of the questions raised by some of the postings will be addressed by the Court in that lawsuit in due course. I would, however, like to clear up possible misconceptions.

First of all, to clarify Mr. Wild’s recent emails to “Pam” of “bookalicous.com” and a few other reviewers, Mr. Wild was not threatening to sue any of these persons. He only intended to make them aware of his trademark rights in CARNIVAL OF SOULS, to minimize the confusion he has already suffered with respect to HarperCollins’ conscious choice to use his registered trademark for its new book (soon to be a series of books) by Melissa Marr. Mr. Wild has no intention of suing bloggers and reviewers and we apologize for any misunderstanding in that regard. (We especially thank “Pam” for her 9/11/12 comment on “bookalicious.com” that Mr. Wild has been “very forthcoming and nice.” That is, of course, the tone Mr. Wild wishes to strike.)

Mr. Wild did not want to sue HarperCollins and he did everything possible to avoid it. Mr. Wild made HarperCollins aware of his United States Trademark Registration No. 3,921,658 for CARNIVAL OF SOULS in June of this year, well before HarperCollins was set to publish the book, and politely asked HarperCollins to simply change the name. He sent many follow up emails to HarperCollins and/or its attorneys trying, in good faith, to resolve this matter with HarperCollins without the need for litigation, at a time when it would have been relatively easy for HarperCollins to change the name to another perfectly good title. Unfortunately, Mr. Wild’s suggestions fell on deaf ears. This left Mr. Wild the choice to either protect his legal rights or just give up. After spending over eight years building a business using Mr. Wild’s CARNiVAL OF SOULs registered trademark, Mr. Wild chose to protect his legal rights.

The commenters who pointed out that one cannot trademark the title of a book are correct. However, the United States Patent and Trademark Office makes a distinction between the title of a single work (which may not be trademarked) and the name of a series of works (which can be trademarked). Mr. Wild’s CARNIVAL OF SOULS trademark is for a series of comic books, graphic novels and novels, not the title of a single book. There is simply no legal question that trademarks may properly be granted for series of books. There are currently over 6000 registered trademarks for series of books or novels. HarperCollins itself has 100 or such trademark registrations for “series” of books or novels.

HarperCollins’ bluster that Mr. Wild’s suit is “completely without merit” etc. needs no response, since the appropriate forum for such arguments is the Court. I do note, however, that HarperCollins’ contention that Mr. Wild has “no exclusive right to [use of CARNIVAL OF SOULS] as the title of a creative work” is a misstatement. As discussed above, Mr. Wild’s registered trademark covers a series of comic books, graphic novels and novels. It is not just the “title of a creative work.”

Some postings expressed the opinion that Mr. Wild should not be entitled to his CARNIVAL OF SOULS trademark because the phrase “carnival of souls” existed prior to Mr. Wild’s adoption of it as a trademark for his series of novels and graphic novels. Under trademark law, however, it is not necessary for a trademark to be a uniquely coined term, like KODAK. To the contrary, many well-known trademarks are for otherwise common words or phrases used in connection with various goods. For example, APPLE is the name of a fruit but is also a well-known registered trademark covering computers. Wendy’s International, Inc. has a trademark registration for “WHERE’S THE BEEF?” Reg. No. 1,410,896, for “restaurant and carry out restaurant services,” even though this is a common phrase, not invented by Wendy’s. One of HarperCollins’ own trademark registrations for a series of books is “I CAN READ!” (Reg. No 4,163,123), which I believe most people will agree is a common phrase.

Some postings expressed the opinion that Mr. Wild should not be entitled to his CARNIVAL OF SOULS trademark because there was a 1962 movie by the same name, a remake of that movie and/or a KISS album by that name. That is also not how trademark law works.

Trademark registrations are classified into 42 different “International Classes,” each covering different types of goods or services. It is very common and perfectly acceptable for the same word or phrase to simultaneously exist as a trademark in more than one International Class, for different goods or services. For example, the word LIFECYCLE (itself a common word) is a registered trademark in International Class 21 for bottles (Reg. No. 3, 981,589); in International Class 19 for plastic and wood composite building materials (Reg. No. 3,120,123); in International Class 9 for computer software (Reg. No. 2,954,623) and in many other classes, for different goods and services, all owned by different companies.

Mr. Wild’s trademark registration for CARNIVAL OF SOULS is in International Class 16 (comic books, graphic novels and novels) and in International Class 41 (for multi-media). By contrast, movies (such as the 1962 movie) and recorded music (such as the KISS album) are generally classified in International Class 9. In the lawsuit, Mr. Wild is only seeking to enforce his trademark against HarperCollins’ infringing use in connection with its novel (which is to become a series of novels), the same goods covered by Mr. Wild’s CARNIVAL OF SOULS trademark registration in International Class 16. This is an appropriate exercise of Mr. Wild’s legal rights, notwithstanding prior uses of CARNIVAL OF SOULS for the titles of movies or record albums, which are for different goods in different classes.

As to the “Buffy the Vampire Slayer” use of “Carnival of Souls” in the title of one book in the “Buffy the Vampire Slayer” series, though that use does not predate Mr. Wild’s use, it did not present the threat that HarperCollins’ massive promotion of its CARNIVAL OF SOULS novels (soon to be a series) has. (Incidentally, the name BUFFY THE VAMPIRE SLAYER is itself the subject of many trademark registrations owned by Twentieth Century Fox, including Reg. No. 2,480,081, for a dramatic television series.)

For those who are interested in getting the facts, the legal papers in this case are available on “pacer.gov.” (You need to set up an account, though the fees are usually only a few dollars). Click “Find a Case” and “search the pacer case locator.” Once you log in, click “civil” and then enter “8:12-cv-01191″ as the “case number.” (The case name is “Jazan Wild v. HarperCollins Publishers LLC).” The facts might even change the opinion of some of the posters. Of course, ultimately, the facts are what matter in Court.

146 Comments

I didn’t know a book’s title could copyrighted/trademarked? Or a film’s. Otherwise “Bad Boys” would not have had the success it’s had.

I tried looking up the cases, but I don’t have a Pacer subscription. And there’s already a film called Carnival of Souls so it’s not exactly a wholly unique title. Unless he’s saying the story is a rip-off like he did with Heroes.

Until the outcome of the suit – if it is in his favor – it doesn’t make sense to take down a review IMO. Though I suppose any promotion post would fall under the blanket of the cease and desist.

I want to address this now, as I have nothing against Pam or this site at all. I just sent an email to Pam, which said the following…

I want you to understand something. We contacted Ms. Marr and Harper Collins, way back in June and asked them to please respect our trademark. I have been married for 24 years today, today, as a matter of fact. My wife and I have built our company Carnival Comics over the last 10 years. In that time, we invested endless hours and tons of money building our brands. We have been very blessed. Carnival Of Souls, our series was the number 1 ebook on Blackberry for over a year. It was featured in the LA Times:

So we protected our time and money… and brand by registering a trademark for CARNIVAL OF SOULS. I started using the mark in commerce, way back in 2004. I applied for registration in 2009. and the USPTO granted me a mark.

The person you should be mad at is Harper Collins, who themselves own trademarks for book series. This is a big company, looking at someones lifetime of work and just taking it. We begged them to do the right thing. I had hoped Mrs. Marr would stand up for the rights of trademark owners, but she did not. Would you be angry at J.K. Rowling for stopping someone from putting out a HARRY POTTER series? She has a trademark as well.

See my point? I am not doing anything but trying to save my series from an out and out attack by a billion dollar corporation that feels they are above the law. I knew that if they released the Marr book, I would be the bad guy, for trying to defend my trademark. But what else can I do? Would J.K. sit back while someone else released another HARRY POTTER series. I think if you look at the facts in the case, you will see, that Harper Collins, should have not released a book and series, with a mark that they knew, was already out there.

What’s next another Twilight series? As I said before, I am now stuck with having to issue “cease and desists”. I got a lot of better things to do with my time. Harper has caused this entire mess. Read the complaint and you will see what I am saying is true.

(Also as to your question about CARNIVAL OF SOULS being a movie. Well trademarks are for classes of goods. “Apple” is a fruit and “APPLE” is a class for computers. My CARNIVAL OF SOULS mark is for novels, comic books and graphic novels of which I have pubished all three.)

Just a thought – sue/cease and desist the author/publisher of this book if it’s really that much of a problem. (Whish I’m sure you are doing). Sending a cease and desist to people who are, perfectly legitimately, reviewing a book? That is really bizarre behaviour.

Um, are you sure you’re a writer? There are an AWFUL lot of grammatical errors in your long-winded response, as well as a lot of errors about the use of copyright. “WebSphere” is the registered trademark of one of IBM’s major copyrighted software lines, and certainly Big Blue has never gone after any software reviewer for using the name of the software in a review thereof. By trying to forbid anyone else to use that short phrase, you’re driving sales AWAY; unless, of course, you’re of the “even bad publicity is good” philosophy.

Shooting the messenger is a time-honoured tradition! Apparently, from a certain point of view, scorched earth is better than leaving any possibility that one might ‘lose ground’ to someone else, be it in an argument, a publication, or what have you.

You can find the same behaviour in numerous patent and trademark lawsuits. They call them ‘trolls’ for a reason.

No reasonable person would take out uninvolved third parties before a main target. If he has counsel, he would have been told that much AT LEAST.

Thank you for the links, I’d like to read up on the case and take a look at the exhibits. And FTR I’m not mad at anyone. (I’m not sure whether that specific line was directed at my comment.) You have a right to defend your property and Harper has a right to defend their actions. The outcome is for a judge (or jury if that’s the case) to decide.

I was making no judgments against either party to the suit. I always prefer to reserve judgment on these matters until after a court of law has reached a determination. Or at the very least until I’ve read the facts of the case, which my comment above clearly showed I hadn’t.

I was simply inquiring as to whether a book’s title could be copyrighted as I’d thought it couldn’t. I’m not very familiar with trademark law, either, so until I read the documents you’ve linked I won’t have a better idea of what’s happened.

I was simply addressing the point as to whether posting a review for a book with a title that was in the middle of a legal action that has yet to be resolved needed to be pulled. You’d put people on notice with your cease and desist letter. I’m sure many bloggers hadn’t been aware of the suit in the first place. I hadn’t until I’d read this post.

Which made me wonder if under the scope of your C&D a post that someone has done to promote the book would also fall under that. Or a tweet. Or a comment. As it is a matter for a court to decide, my question then is would it necessitate pulling the post now per the C&D or would perhaps a note stating that the title/book is under question in a legal matter and pending outcome of that case, the post will be subject to change. (Or something along those lines.)

That’s another good point and something to think about. Positive and negative reviews can potentially help sell books. So are they promotional? I don’t like to think of my reviews as promotional even if in the end they do result in a sale. But technically they might be seen as promotional. However, does this rise to a legal definition of what is considered promotional. By that logic, positive reviews from paid reviewers might be promotional. And that leads to a whole different slippery slope….

I was thinking more along the lines of posts that have a more promotional feel like WoW or Book Spotlight posts. Would those necessitate a takedown notice moreso than a review?

Congrats, Jazan! You are this weeks Complete Blithering Fool of the Internet! if you had just limited the complaint to Harper, no one would have noticed. You would have been just a small, stupid person who used a title in common use (unlike Harry Potter) and thought hat magically made you the owner. By going after review sites, you are transformed into a complete idiot justifiably earning the utter contempt of thousands of readers, especially now that his story made Slashdot.

I’m often saddened how many people don’t understand what rights a trademark registration really confers. This is one fine example.

The people on this forum have been gentle to you — even the one calling you a dipstick. You don’t choose to accept anything, and in your messianic glee continue your murderous rage to remove anything resembling your non-original three words from the face of printed material.

I’ve read your filing, as I read many filings in US Federal Courts on a regular basis. Your lawyers are the only ones that will be enriched by this action. One man’s gain is another man’s loss. You will be the loser financially in this, and due to your apparent hubris, moreso in the market.

It is impossible to educate the man with fingers in his ears saying “la la la”, so all I will end with is… you’ve been given great advice, and your ignorance, pride, and folly is all of your own making. This won’t end well for you.

Best and kindest regards, and pity that you won’t climb out of the hole but instead keep digging insisting China is but a few more shovel heaves away.

Your problem is that you’ve tried to trademark an obvious, generic, widely used term. There are multiple references to ‘carnival of souls’, some dating back from long before you registered this trademark. Maybe you can build a company around a different trademark. ‘Thriller’, ‘Detective’ and ‘Chick-lit’ seem good candidates to me. I’m sure that it will make some lawyers happy.

A trademark is different from copyright. A title can’t be copyrighted, but it can be a trademark.

I spent the morning looking at the USTPO.gov website, and I came to the conclusion that even in a similar venue (in this case, the printed word), a trademark is not a 100% solid thing to stand on and defend against all uses. There are limits. As long as there is no confusion between the two works, or it would not be assumed by the general public that Ms. Marr’s book would be wrongly credited to himself because of the title, or that it misrepresents his original intentions with his own work, there shouldn’t be a problem. Granted, I am not a lawyer, but my takeaway was as long as there was no public confusion between the two works, regardless of having registered a trademark, it is unenforceable. There is a “fair use” caveat in trademark, just as there is in copyright.

A title can’t recieve a trademark either. But a series of works can. Since I have a “CARNIVAL OF SOULS” series, then I was able to register a trademark. That mark, allows me the right to be the sole company or person using “CARNIVAL OF SOULS” in certain classes in the United States. The classes I have for my mark are 16 and 41, novels, comic books and graphic novels. Clear confusion is my wife getting in emails from Amazon, (6 in a month, in fact) titled CARNIVAL OF SOULS. In the emails there is a book titled CARNIVAL OF SOULS and the words, if you like CARNIVAL OF SOULS, then you may like this. And Marr’s infringing mark is right there. My wife has never purchased a Marr book, yet she has purchased my series of CARNIVAL OF SOULS for her Kindle. So everyone who bought my series got emails from Amazon titled CARNIVAL OF SOULS, that featured the first book of a new series, titled CARNIVAL OF SOULS. Ok.

This is clearly not Fair Use and the very reason for a Trademark. Harper Collins and Marr, would never take JK’s HARRY POTTER mark and use it on a series. Even writer’s who aren’t JK still deserve to have their registered trademark and series respected. Hope you understand.

I am not seeing where her “Carnival of Souls” is a series. Because you seem to be harping on this fact as a reason why you have a case here. Perhaps if you had an original idea for a title instead of taking a commonly used one, then this wouldn’t have been an issue. Maybe you should have called it something else like “Rehashed Something Wicked This Way Comes…with Overdrawn Pictures.” I’m just saying.

The reason JK Rowling has exclusivity is because there was no “Harry Potter” before she created the phrase, the concept, the entire thing.

This sounds like a tantrum misdirected at an author who in all likelihood has no idea who you are, what your work is and who is, in no way, trying to profit from your specific trademark. Is all this because of how your NBC lawsuit is going? Honestly though, you are really not protecting your work and integrity by asserting yourself in this way. It doesn’t really make me want to buy your product. I would read Ms. Marr’s work over yours – and I have never heard of her.

When Neil Gaiman says your behavior is deplorable, people will listen. Derision will follow. But if you want to go around suing little people to make yourself feel better.

If you think the name and notion of magic in association with the name “Harry Potter” was J.K. Rowling’s first (as in “she created the phrase, the concept, the entire thing”), you need to look into the film “Troll”…

I heard the working title for Philosopher’s Stone was Lord of the Ringers.

Sep12

Mr Boots

Trolls sued and lost. His [Jazan] case has no hope. Harper could afford to fight the case forever, can he? Doesn’t even matter if he is legally right [he isn’t], Harper could still probably make him go broke fighting it.

Dear Jason,
Imagine for a second the following scenario. Mister Eric Potter marries the young Candice Willougby, in 1986 (years before Harry Potter), they name their son after Prince Harry of England. Young Harry Potter gets some school teasing after the books come out about a character with the same name but this doesn’t stop him from becoming an expert in his chosen field of politics. Indeed he becomes a major force in politics.
Fourty odd years later he writes an autobiography.

Do you believe Miss Rowling would have a case against him ?

Well an autobiography isn’t technically a novel but now what if I – a fan of his life’s work, write an alternate history novel about Harry Potter the politician – in a world with Magic. Now it’s getting dangerously close to the works of Miss Rowling (which I can prove I have never read – that by itself is an absolute defence against copyright infringement even if my story is a word for word replica of one of her books) – does she have a case now ?

Trademarks are DELIBERATELY very limited in scope for two core reasons.
1) They cannot and must not be an instrument of censorship. The law is written so as to prevent that in all countries that are signatories of the Berne Convention (that includes the United States).
2) Much more crucially – contrary to your belief, trademarks DO not infer property rights, they are NOT a right to the owner nor are they meant to protect the owner of the name. Trademark’s are a CONSUMER protection law – their purpose is to ensure that if you buy something, you can be sure you are buying the product you INTENDED to buy and not a fake. They are NOT there to protect the manufacturers of products but the BUYERS of products.

This is why the limits on trademarks are so big:
Firstly an undefended trademark is automatically lost (you’re not at any risk for this one).
Secondly if a trademark becomes a common-usage word, then it’s trademark status is automatically revoked. This is why Johnson-and-Johnson no longer has a trademark on “band-aid” – it became a common-usage word and was therefore no longer eligible as a trademark for a particular BRAND of band-aid.

In your case you are VERY much at risk for the second factor – since there have been fictional works of many categories (including novels) using the title you trademarked since at least the 1960’s – it would be ludicrously easy for even a bad lawyer to prove that the word is common-usage for a particular type of story and therefore is not eligible for trademark protection.
Frankly the US PTO messed up to ever grant a trademark on a name like that and unless you bribe a judge the odds are your trademark will be revoked by the court when your case comes before one (it won’t be the first time that’s happened).

Now is this nice for you ? Certainly not. But the rights of the public outweigh the business interest of one person. Especially since the right that is being protected by these limitations is the right to freedom of speech.

And even in the one in a billion chance that your trade-mark case against Harper-Collins somehow succeeds, you would still have absolutely no claim against reviewers who non-commercially acknowledged the existence of their book prior to even knowing about yours.

I hate to be the bearer of bad news – but your lawyer should have told you this, he didn’t because he’s a bad lawyer who is hoping to get paid by you, by the hour.

Why oh why would the owner of a work (or their spouse) ever need to buy that work for their kindle? There must be some mistake.

Also, why on earth would you blame someone else, publisher, author, or whomever, for a faulty search algorithm from Amazon?

Seriously, I get trying to protect your IP, I do. But you’re going about it all the wrong way. I’m surprised your lawyers allowed or encouraged you to do this (I don’t know which). Unless, of course, they’re just trying to line their pockets at your expense. Then it makes complete sense to me.

Why would a spouse or work owner ever need to buy the work for their kindle? Maybe they wouldn’t, but I can think of a few reasons they might want to:

– Quality control. A final check that the process really worked out exactly as expected.

– Being able to lend it out (if they’ve permitted that on that title). Admittedly, that’s only do-able once, so this one’s a bit shaky…

– The convenience of having it in your kindle library and accessible from all your devices without any special effort may be worth ~50% (after taxes, and assuming they’re on the 70% royalty rate) of the cover price.

By your logic, why would you ever want or need to buy author copies of your paper book, or get supply of a certain number of copies written into the book contract, when you’ve got the original artwork and word processor files? There are plenty of points he probably needs to be challenged on; I don’t think this is one of them.

WTF? Now I really want to post a review of this book, get an email from him, and just give him a piece of my mind. This is such a stupid case. If you’re able to update us on what’s going on, please do.

Book titles can absolutely be trademarked if it’s a series title. Refrain from offering legal advice for the good of all.

Wild is doing exactly what trademark law requires him to do to avoid losing his rights to that trademark. However going after reviewers is a misunderstanding on his part. Simply mentioning a trademarked title is not infringement and Wild would be best served to target only the author and publisher.

So…is he also going to go after the Buffy the Vampire Slayer novel Carnival of Souls? And the band that did the song with the same name? Titles can’t be protected that way, look at how many books exist with the exact same titles.

Again, I have a series titled CARNIVAL OF SOULS. Series can recieve a trademark in certain classes. My classes 16 and 41 which include novels, comic books, and graphic novels. I have a trademark for my series and JK has a mark for her HARRY POTTER series, as does the TWILIGHT series, as does HARPER COLLINS for the I CAN READ series and so on and so on. Also Nike has a mark for shoes… try making a new line of shoes using Nike. The trademark office just doesn’t hand out trademarks like candy. There is a long, evaluated process. Which I did. And I am the only person with a live “CARNIVAL OF SOULS” mark.

As for music and songs, I do not have a trademark in those areas, so it is off the point completely. Apple computers does not have a trademark on apple the fruit. I have every right to protect my series. And it is sad to have to send “cease and desist” notices out to very nice people like Pam. She Rocks. Harper not so much.

Actually, JK Rowling trademarked the name of the character Harry Potter. Just saying. And Twilight is trademarked in the sense that “Twilight” is a YA book about teenage vampires, so no one else can write a YA book about teenage vampires and also call it Twilight (that’s a form of plagiarism), but there’s nothing stopping someone from writing a book about a man returning home to Nantucket to talk to his dying father and calling it “Twilight.”

Your abuse of the US patent system to threaten people with “cease and desist” letters is appalling. This is ALL about money, greed and control and has nothing to do with any violation of your patent. Your ‘power trip’ is like a tantrum thrown by child when he/she doesn’t get their way. You can justify your actions until you’re blue in the face as it won’t change the fact that you are a money hungry ‘patent troll’.

He couldn’t go after the Buffy book, because he didn’t register the TM until 2009, and the Buffy book was published in 2006.

He didn’t invent the phrase, nor was he the first to use it, he just borrowed it from the collective for his series, and then trademarked it. Trademarks are tricky, though. They’re usually very narrow.

Of course, were he a smarter man, he would sit back and allow his obscure comic/book titles be discovered and purchased by the giant audience of Melissa Marr fans who might also have fallen in love with his comic series of the same name when they came across it doing Amazon searches and the like. (This happens a lot, for example, BENEATH SHADES OF GRAY got a bump from the popularity of the 50 SHADES series and confusion between the titles.) Instead, even though this (alleged) infringement causes him absolutely NO HARM, by going after her, he will now guarantee that none of her fans will purchase his books, even if they might have liked them before.

Of course, were he a smarter man, he would sit back and allow his obscure comic/book titles be discovered and purchased by the giant audience of Melissa Marr fans who might also have fallen in love with his comic series of the same name when they came across it doing Amazon searches and the like.

The entire time I’ve been reading this article, Heather, this has been my thought all along! I bet Mr. Wild and Ms. Marr could have helped promote each other in the grand scheme of things. Smart thinking!

No chance, you cannot copyright a title!! I just found a Russian classic “Dead Souls” and thought, hmm, why is that familiar? Because it’s also the name of an Ian Rankin novel. Words CANNOT BE COPYRIGHTED!!!

You seem so confused that i wonder if you are posting this comment to the correct page. your ‘dead soul’ argument is invalid. unless one of those authors trademarked his/her work it is not a comparable scenario. also note that we are talking about trademarks and not copyrights, and also we are not talking about copyrighting a word, we are talking about copyrighting a phrase. For example, the phrase ‘Just do it’ is trademarked by Nike.

I see Jazan Wild has been replying to commenters here… and it seems to me he just doesn’t get it.

I understand you have a legal beef with Harper-Collins. That’s fine. Sue away. Go nuts.

Where you went wrong is by sending legal threats to third parties who have no real stake in this matter other than the fact that they’re reviewing the material you’re suing against. This is not going to win you friends. In fact, if anything, it’s making people far more hostile towards you. You’ve even gone Neil Gaiman posting on Twitter saying that what you are doing is an example of “how bad people behave”.

If the title gets changed, then the reviews will likely reflect that. Until then, all you’re doing is engendering ill-will in both the critical community and your potential readers… and only the ignorant really believes “there’s no such thing as bad publicity”.

As far as I understand, this chap is exactly right to be issuing warnings against people infringing his trademark. In fact, if he doesn’t, he would lose his rights to the protection and use of the name!

As for “books with the same name” no, that’s the whole point. He’s paid to legally protect that name for a book, so no, you can’t call it the same thing. That’s the whole point!

Like me trying to brew and sell a beer called BASS, my writing a book and calling it someone else’s trademarked book name would be very foolish.

I am not targeting reviewers. I am policing my trademark, as I am required to do. Nigel said it correctly… “In fact, if he doesn’t, he would lose his rights to the protection and use of the name!” Actually the trademark, not name.

I ask you, do you see “CARNIVAL OF SOULS” in use on this page in connection with the sale or promotion of a novel? If so, then that is trademark infringement. It is not the reviewer’s fault. The fault lies completely with Marr and Harper Collins.

In the end, Harper sent out endless amounts of promotional books to be reviewed for just this very reason. They wanted to flood the market with my mark, “CARNIVAL OF SOULS”.

Pam: “Tonight one of my reviewers received a cease and desist from Jazan Wild”

That’s the very first sentence on this page. Did you think we wouldn’t see it?

Sep12

Pokey

“I am not targeting reviewers.”

Liar.

Pam: “Tonight one of my reviewers received a cease and desist from Jazan Wild”

That’s the very first sentence on this page. Did you think we wouldn’t see it?

Sep11

Tesria

No one cares if he targets HC for this. Targeting reviewers just makes him look like he’s on a power trip. Policing your trademark doesn’t have to involve reviewers. Focus on the people doing wrong and maybe write to reviewers and suggest they write this piece of news so people reading the site know there’s a contest over the name. But cease and desist? Lawyers make most people flinch, it is too heavy handed.

Nigel, you’re as wrong as he is. Jazan has clearly stated that he has NOT trademarked the name (or as it’s commonly known, the title) of his books; he’s trademarked the name of the SERIES. You cannot trademark or copyright the title of a Work. It doesn’t matter how famous you are, or how many bajillions of dollars you have. I could write a novel called “The Deathly Hallows” or whatever, and Rowling could get stuffed. I can’t throw Harry Potter in, because she’s gone and trademarked that character name (although her trademark would only apply if I were writing about a boy wizard with that name). So Jazan is correct in his interpretation of the law, but not his implementation. You cannot sue, or threaten people who write ABOUT a work you feel infringes your trademark; and this case, it’s unlikely that Marr’s work even comes close to infringing. As Mr. Wild has said, trademarks are very specific. His apply to SERIES, not titles. He appears to understand this, but then goes off the rails and accuses HC of violating his trademark.

So no, Nigel, you did NOT explain it better than Jazan did, and you were flat wrong, to boot.

I will admit that the wording of Wild’s C&D was not as polite as it could have been, but I don’t know that I could be nicer if I were in his shoes.

I’m saddened that HC (and by extension, MM) let this happen. Trademarks are there for a reason, and especially in light of all the drama going on in the book blogging world lately, I’m going to respect his legal right to protect his brand.

Kassiah, It really depends on tons of things. I don’t think Melissa Marr would take something that was someone else’s willingly. Her inspiration came from that song that is in the book trailer. Wild owns the copyright on the series, but I haven’t seen Melissa’s series called anything yet.

Nigel has it dead on. The risk of looking like a dick when people publish and complain about your C&Ds is just something that comes with the territory of a trademark. The nature of a C&D is dickish, but necessary He doesn’t have to sue bloggers or do anything to damage their (and as far as I know he hasn’t), but he does have to take some action to show the courts that he has consistently policed his trademark when he goes after the bigger game (the case against Harper Collins). I’m not saying you should necessarily take your review down, but he doesn’t deserve to be publicly shamed for doing what he legally has to do in order to keep the trademark he was granted.

I’ve publicly shamed people. It didn’t look like this. This post serves to update my community on a problem that is happening right now. If you read the post, I’ve clearly asked people to keep it civil and not name call.

For the record I won’t have one of those train wreck scenarios on my blog. I will cut the comments, delete the ones I want, and shut the function down completely if you (ie Jazan’s supporters) or they (Marr’s supporters) can not party nicely together.

Thank you. And I will not sue any blogger ever. This is what I have been forced to do, because I have waited since June for Marr and Harper to do the right thing. If I continue to get endless “Google Alerts” with endless infringements… then the clean up will be… uh… endless. (Am I a writer? he he.)

1. He is not suing, he is sending C&D as required to demonstrate trademark protection.

2. He is not sending C&D to people who review *his* work, but people who review the work that infringes his trademark.

Your analogy requires that a third party release a device called the iPhone. At which point Apple would take on the third party, and would likely have no qualms about sending C&D to people reviewing the infringing product.

For your argument to apply, the infringing phone would be required to infringe on their trademark (iPhone) not the patents (which are at play in Apple suits). If any vendor released a phone going by the “i-” moniker to which Apple owns the trademark I’m fairly sure they will send c&ds to any reviewing parties as it is bound to confuse consumers.

The same goes for this case. In essance the “Carnival of Souls” title will probably confuse consumers and will also dilute search results for Wilds works possibly causing him financial harm. Reviewers are at guilt for leaving the review online when a c&d has been received and SHOULD in my opinion be sued.

If I had review Ms. Marr’s book I’d leave the review offline until the legal issues has been resolved.

Apple is defending its patents not trademarks. Trademarks, patents and copyrights protect against different things and are defended in different ways and yes and is suing lots of companies for violating their patents.

Utter nonsense. Forced by whom and why? It appears to me that you choose to do this C&D in an attempt to exercize power you thought you had.

Now that you are finding out that this power does not actually extend as broadly as you had hoped, you are playing the ‘victim’ card.

The actual truth is: You are parasitic troll and the internet, or rather society as a whole, can do without spineless cowards who use fear and the threat of legal persecution to scare the rest of the world to get their way. You, sir, are despicable.

In that case Mr. Wild should be expecting a call from Wes Craven’s lawyers regarding his film “Carnival of Souls” released in 1998. There is also a 1962 film of the same name. A quick Google reveals three books titled Carnival of Souls and I’m pretty sure if I go through the catalogue at my local SF reference library I’ll find more. Shall I notify the estates regardng Mr. Wild’s infringement? I’m just asking, after all, every time I say the name of the author of Phoenix Without Ashes I owe him money, this is exactly the same, right? All those books called “Twilight” are in big trouble, just like that Tolkien buttwad for ripping off J.K. Rowling (real rant. It’s still out there: look for ‘LOTR rip-off’ for hearty laughs).

Reminds me of Eddie Izzards skit where he pretends to be a British Imperialist who claims India for himself and plants a flag.

‘I claim India for Britain.’
And they go, ‘You can’t claim us, we live here! There’s five hundred million of us!’
‘Do you have a flag?’
‘We don’t need a bloody flag; it’s our country, you bastard.’
‘No flag, no country. You can’t have one.’ “

I can only comment on English copyright law, but titles are fair game for any use, whereas song lyrics are not. To quote from a work in a reasonable quantity for the purposes of review or academic work, is absolutly legit and you do not need permission to do it. If you want to copy bits of a book for other reasons, you need permisson and *may* have to pay. Unless the person is using a creative commons license that covers you for this. To try and prevent anyone from reviewing your book might, in America, consisute an infringement of the reviewer’s right to free speech. I’m not a lawyer either.

I think he has an argument with Harper Collins but to target reviewers, bloggers etc. is just dumb. A reviewer can’t change the name of a book or a film. Mr. Wild, your beef is with HC not with anyone here.

I guess my question is whether the two series could logically be confused? I haven’t read either, but have gone the rounds with publishing law. It’s my understanding that so much of it is nebulous–really left up to the interpretation of the individual judge in the case (should it go that far).

Trademarks are very different from copyright, though. A trademark loses value each time it is used illegally and not challenged (thus Disney’s policy of ‘no exceptions’, even for the most innocuous uses of their trademarked lines). On that footing, it seems that Mr. Wild is only doing what he has to do to protect his work.

Still, trademarking a phrase that was in wide use before his series probably wasn’t the wisest thing to do, IMHO, as he could spend his life just sending C&D letters to all those who believe that, through wide use, it is or should be in the public domain. This is NOT the same as Rowling having a trademark on Harry Potter–that is a distinct and identifiable character and world, unique to her. ‘Carnival of Souls’, as a phrase, is neither (in fact, I just watched a movie with that name last night, and the BUFFY graphic novel predates his use by three years).

First… your comment is well written. Second, my first date of use in commerce is 2005, well before the Buffy novel that was a series titled Buffy, that titled one book “Carnival Of Souls”, which came out in 2006 a year after my comic book series began.

Also I have a trademark for a series, not a title. There has been no series ever… again ever… using “CARNIVAL OF SOULS” as a trademark. Just my series, which has been downloaded over million times. The number 1 ebook on Blackberry for a year. Also featured in Entertainment Weekly’s Must List and featured in the LA Times for being the first comic book ever to be on Blackberry and Nokia phones as well as helping CARNIVAL COMICS be named a Nokia 2009 Success Story alongside Netflix. That’s pretty out there and I am proud of all the hard work, several people put in over the years to make it happen.

Apple did not invent apples. Snow White is a trademark by Disney, yet Disney did not invent Snow White. If you use a mark in certain classes of goods you can recieve a mark. That is what I did. I will defend my mark, my brand and my series.

As far as these “cease and desist” letters go, as it has been stated, one must send these letters to protect ones mark. It comes with the territory sadly.

The bigger question, how does a company like HARPER COLLINS not search trademarks (TESS) to see if a trademark already exsists before spending tons of money on a new Book Series? And is that what they did, saw the mark and felt that they were above the law?

So can anyone now release Twilight as a book series, other than Meyers? If not, then why not?

I can’t say for certain it isn’t a series. It seemed to me the story would be continued when I read it. I doubt they would call it Carnival of Souls if they did continue the story. Goodreads doesn’t have it listed as a series title yet.

1) Your crappy *series* is called “Carnival of Souls”, which is trademarked.
2) Melissa Marr’s *single* novel is called Carnival of Souls.
3) There have been numerous books and movies called “Carnival of Souls” produced prior to your crappy *series*.
4) Unless Melissa Marr tries to create a *series* called “Carnival of Souls”, there is no trademark infringement.
5) Please let us know how your pending lawsuits against all the other books and movies titled “Carnival of Souls” works out for you.

With multiple (similar) lawsuits in the works, this seems to be the case as far as I can tell. The same series work Carnival of Souls was used to file a lawsuit against the NBC television series “Heroes”.

I don’t have any idea whether the series stands on its own merit or not, but this is surely one way to get attention. Especially if you’re a struggling writer/publisher, suing over copyright (and now trademark) infringement can certainly look like an easy way to make your problems go away. Unfortunately, the concepts in both cases seem tenuous and vague at best so I doubt either will bring much success.

As for the questions of how would we feel if JK Rowling or other similarly well-known authors protected their works, that’s a red herring. No one could arguably use Carnival of Souls as launching point to gain an audience like they could with Harry Potter. The power of Potter is that it is already well known. No one I know has ever heard of Jazan Wild or Jason Barnes until they read about it on Slashdot this morning. Let me tell you, you aren’t winning any fans being posted on Slashdot this way…

He has no standing to ask bloggers to C&D their reviews. Blogging reviews of the title falls firmly under fair use: “Fair use allows commentary or criticism that incidentally involves the use of a trademark…”

I was directed here from several links posted on Twitter by prominent authors such as Neil Gaiman. Sorry Mr. Wild, but Gaiman thinks you are behaving badly and I tend to agree.

Using series like Harry Potter and Twilight and companies like Apple as examples does not make you seem smart, well read, or famous, it makes you seem attention grabby.

And I agree with the commenter above, pushing away legions of Marr fans, YA fans, and charming, nice people fans is not a way to get readers. I’m sorry Mr. Wild feels mistreated but I don’t think that HC or Marr were hurting Wild’s work, fans, or integrity.

(And I noticed he keeps dodging the Buffy book, possibly because it was written before his trademark, but more likely because he does not want to take on Mr. Whedon, the reigning King of All Media Ever.)

#1. The Buffy Book came after my series was fully released in 2005 and early 2006.

#2 I don’t need this attention. We have tried to have Harper Collins and Marr change the title of the book and series. Get it? (How is that wanting attention? It is the reverse.)

#3 Neil Gaiman stands up against copyright theft of his works, by download and otherwise. Is he ok with trademark theft? I think he is a fantastic writer. This is not his problem.

#4 I don’t give a single care about publicity. I have had it before, and will have it again. It is not all its cracked up to be. Take that from someone who was named a NOKIA Success Story and been on Entertainment Weekly’s Must List. Having a good family life is better.

#1: You keep pointing out that your first book in this series was in 2005 when the Buffy book is referenced but you also said you applied for the trademark in 2009, thus the Buffy title is before your trademark. It is before the time frame when you could actually enforce a trademark. Explain that rather than listing the date of your first publication in the series as it isn’t helping.

#2: Sending out a cease and desist order is always asking for attention. Sitting quietly and ignoring it would be not asking for attention [but could risk diluting the strength of the trademark]. Be prepared for more attention until awhile after this is over.

#3: How authors and holders of trademarks like this handle themselves is the problem of any concerned author as it can impact future cases and general public view of similar cases.

#4: If you don’t care about publicity then don’t bother responding about it. When you talk about past publicity / fame / greatness [whatever you want to call it], it sounds both defensive and a little holier-than-thou so just avoid it all together to avoid some of that negative connotation.

Sending a Cease and Desist to the author and publisher is reasonable but sending them to secondary sources like review sites like this is not. Your trademark has no impact on them at all.

It is good that you’re trying to talk to people about it, though.
I suggest cleaning this up in a more generous fashion.
To those secondary parties that you have sent Cease and Desist orders to such as review blogs like this, I suggest offering an apology for trying to protect your trademark a little too strongly.
You were a little too overzealous, no ill will intended, sorry about that.

As for Melissa Marr and Harper Collins, I suggest offering to work it out with them outside of court. It is cheaper for you, for one, and is less of a negative impact on your name and your series.
Perhaps getting a note appended to the official product description of their book could both reduce confusion with your series by letting potential readers know that the series and their book are not related and bring your series to light to those readers as potential readers of your series as well.

That’s my two cents, anyway.
I don’t know the full impact that would have on your trademark but as people have pointed out, the words are used for number of titles, so enforcing each of the possible cases that may occur during the duration of the trademark might be more cost than it is worth as compared to the positive light your company and series could be held in by carefully working with people rather than using Cease and Desist letters to forcibly change things.

As Autumn commented above, “Carnival of Souls” is pretty much a common phrase. But from what I have seen online in recent years, it looks like you can get almost anything trademaerked in the US, if you are the first one to apply for a trademark.

I’d be very surprised that it wasn’t found that “Carnival of Souls” was an unenforceable trademark. There’s lots of previous use, and it’s a phrase that is so common in use that I for one wouldn’t even know where it originally came from. (And a quick Google search didn’t help.)
That Jazan Wild has trademarked this in (presumably) good faith is irrelevant in my opinion.

Two:
The book “Carnival of Souls” by Melissa Marr exists, and it has not been pulled from publication. Anyone reviewing this book is perfectly in their right to do so. Until this book is stopped by a court of law, or pulled by the publisher, it is a book like any other book. Sending “cease and desist” letters to reviewers is just stupid, and I doubt there’s any legal right to request this reviews to be removed.

Additionally, if I review one of the books, or comics, published before this trademark was granted, would I receive a “cease and desist” letter? And if so, on what grounds would that be issued?

I want to ask Jazan Wild what he has done to stop all the other books, and comics, who has used the name “Carnival of Souls” in the past? They’re still available (, this is one example: http://www.amazon.com/Buffy-Vampire-Slayer-Carnival-Numbered/dp/1442412119 ). And if you think you have a legal obligation to stop bloggers reviewing Melissa Marr’s book, shouldn’t you be stopping Amazon and others from selling books with this title?
Jazan Wild, if you can’t stop these titles, that were published before you got granted the trademark, from being sold. I think you need to ask your lawyers if this trademark is in fact enforceable.

It’s important to note that he’d be forfeiting his trademark if he didn’t defend it.

So the author in me bristles at the very idea of something like this, there’s an element of being backed into a corner here.

This trademark beef with book titles seems to be the new fad. I got a cease and desist not long ago from a performance group called Fighting Gravity claiming the title of my book was infringement on their trademark. Of course, that one was nonsense because novels and live acrobatic performance acts aren’t in the same class. But it still caused me a lot of headache and wasted time. (Thankfully the internet took up my cause and it didn’t cost me and my smaller publisher a lot of money.)

Honestly, though, from all the reading I did on this subject when it happened to me I can see Mr. Jazan’s point, at least that he might have a legitimate claim. Especially since he took it to the publisher before print. Trademark law isn’t a black-and-white thing.

That said, the C&D’s to reviewers is such complete nonsense I don’t know where to start.

I agree with your points completely. Especially that a mark has to be in the same class of goods. That’s what’s so egregious here. The “CARNIVAL OF SOULS” are novels in the same channels of sale, same websites i.e. Amazon, iTunes, etc. and in the same exact classes. If Harper wanted to trademark their CARNIVAL OF SOULS series, they could not. The Trademark Office would tell them that a mark already exists in those classes of goods. Mine.

As for the reviewers “cease and desists”… I said it before… you can find my mark on this page in connection with the sale or promotion of goods using “CARNIVAL OF SOULS”. Furthermore, it is required that I police my mark. Harper Collins mailed out tons of promo CARNIVAL OF SOULS books to be reviewed, so that their infringing product would be everywhere. That is trademark dilution.

Again, we begged for months (since June, when I first became aware of Marr’s intent to infringe my mark) for Harper Collins to do the easy and right thing, by changing the series name, so that it was not my registered “CARNIVAL OF SOULS” mark. How simple would that have been? They caused this, not me.

You’re wrong about that. Commentary and criticism fall under the fair use exception. You are not enforcing trademark with these letters, you are just badgering innocent people. (Also wasting a lot of your time.)

Just FYI for everyone, a quick Google shows that Mr. Wild tried to sue the TV show Heroes in 2010 for a carnival storyline they ran with some similar storyboarding to one of his comics. A California court found it was “too generic to warrant copyright protection” and “Other than the presence of generic carnival elements and standard scenes that logically flow from those elements, the two works differ radically in their plot and storylines, their characters, the dialogue, the setting and themes, and the mood.”

Strange that he could get a trademark on something a court already found “too generic to warrant copyright protection”. And from what I understand from your comment, we are even talking about something with a similar storyline.
But it fits with what I mentioned in my comment above, that trademarks seem to go to anyone who applies first in the US.

Copyright covers the specific, suitably unique expression of a creative work. This is to say (in the context of this discussion), a book.

Titles are not subject to copyright, because they are too short to be suitably unique. Full sentences get closer. Typically the shortest written work that is subject to copyright would be a poem. Copyright covers creative works, and the end result products.

TRADEMARK is completely different.
A trademark is exactly what it sounds like, a “mark” used in “trade” (commerce). A trademark is used to uniquely identify a company, brand, product or product line.

Trademarks, by their nature, are often extremely generic in nature.
A perfect, very well known example is “Apple”. The single word, of a very common fruit, is as generic as you can possibly get. But it has trademark protection. Even though it cannot be subject to copyright protection because it’s too generic.

For a simple example… using Apple.
COPYRIGHT says I cannot rip apart an iPhone, copy the internal design EXACTLY, and manufacture my own phones that are physically identical in every way to an iPhone, except I call them “CommUnits” instead. I am using a different name, but I am COPYING the iPhone, and I do not have the RIGHT to COPY the iPhone.

TRADEMARK says that I cannot make, for instance, a Galaxy Nexus phone, and then CALL it an iPhone. That would be using the identifying MARK “iPhone” in commercial TRADE. This is a deceptive practice because you’re making people think they’re buying an iPhone when they’re not (even though a Galaxy Nexus is better).

The thing about trademark is that a trademark can only apply in SPECIFIC INDUSTRIES. This is why you have Apple, the computer company, and say, Apple Auto Glass. Different industries, so the trademarks don’t conflict.

This particular situation is tricky though. Single book titles cannot be trademarked. Only series titles. Jazan has trademarked CoS as a series title within the field of “novels, books, graphic novels”. That’s cool.

The hard part is that…. can you claim copyright infringement against a single title (MM’s singular novel), even though that title itself is not valid for trademark.

The industry limit is “novels”, but the trademark is for a SERIES and… this is where it gets weird.

My case, which is on appeal, was number 50 to 0 in which a major network or studio “won” against a claim of copyright theft. The current number is 60 to 0. Not one win in 20 years.

(Third parties now have the freedom to steal from screenplays with impunity, provided they cover their tracks by creating sufficient dissimilarities in what is, in reality, a “derivative work.”) Quote from Death of Copyright by Steven T. Lowe

My question to you is… if Marr and Harper Collins had registered a trademark for “CARNIVAL OF SOULS” and then I came out with my series of comic books, graphic novels and novels “CARNIVAL OF SOULS” 7 years later, would you be this adamant in my defense, if they claimed protection for their trademark?

“My question to you is… if Marr and Harper Collins had registered a trademark for “CARNIVAL OF SOULS” and then I came out with my series of comic books, graphic novels and novels “CARNIVAL OF SOULS” 7 years later, would you be this adamant in my defense, if they claimed protection for their trademark?”

This may not be adressed directly to me, but since you ignored the questions I asked you directly above, I’ll answer it here anyway.

“Carnival of Souls” is generic to such an extent that I would think anyone trying to enforce a trademark on it was either ignorant of cultural history, or a “trademark/patent troll”. That would apply on whoever did it, whether it’s you or Harper Collins.

You may have had a case if Marr/Harper Collins was trying to “piggyback” on your series. That doesn’t seem to be the case at all here.

And sending C&D notices to people who have reviewed this book…That is so far out there it’s ludicrous. I doubt that you have a right to do that even if Harper Collins should lose a court case and change the title of the book. The book “Carnival of Souls” by Melissa Marr exists. And a blogger has as much right to review it as a newspaper has the right to use the title to report on the case you have oppened against Harper Collins.

Carnival of Souls… So generic that HarperCollins must have it. FYI Facebook has taken down HarperCollins Carnival of Souls page. I have every right to have everything that infringes my mark removed. So does Apple, Amazon, Pier 1 and the countless other registered trademarks when people knowingly infringe them. Wherever it is posted. Again for those who can’t grasp it… what kind of company starts a book series knowing another book series has the same name,not to mention a registered trademark? Shame on HarperCollins and Marr.
Shame on you for defending them.

“Carnival of Souls… So generic that HarperCollins must have it.”
Excuse me…Have Harper Collins claimed they have a trademark on “Carnival of Souls”? I haven’t seen that. What I have seen is that they claim it is so generic as a title that everyone can use it. -And the many instances of that name being used before you trademarked it seems to back that up.

“I have every right to have everything that infringes my mark removed.”
You have the right to go to court to defend your trademark against what you claim is infringement by Harper Collins. Until a court agrees with you, the book exists as it is with the title “Carnival of Souls” and anyone is in their right to review it, or otherwise report on it.
What it looks like you are trying to do is strengthen your case that Harper Collins is infringing on your trademark by scaring bloggers to take down their reviews with a C&D letter.
-Have you sent a C&D letter to USA Today, or Amazon, or any other company that according to you infringes on your trademark by reviewing Marr’s book?

“Again for those who can’t grasp it… what kind of company starts a book series knowing another book series has the same name,not to mention a registered trademark?”
What kind of person trademarks a common term in SFF without first checking if that is a widely used term?

“Shame on you for defending them.”
I’m defending a common SFF term from being trademarked. I don’t care who trademarked it, it’s an established term, bordering on being a SFF trope. Many SFF fans would have no problem instantly recognizing what a “carnival of souls”-type story is.

“FYI Facebook has taken down HarperCollins Carnival of Souls page.”
Facebook takes down pages at the drop of a hat. Sometimes for review, sometimes permanently, and I have yet to see them explain their reasoninig for these takedowns. Basically, that they have taken down a page doesn’t prove anything at all.

On a final note, I have seen no official word that Marr’s book is part of a series called “Carnival of Souls”. The cover to the book offers no clue to it even being part of a series. Goodreads does not list it as being part of a series.
The Bookalicious review of Marr’s book, that you have issued a C&D against, makes no mention of it being part of a series.
Harper Collins’ statement, that Pam has published at the bottom of this post, only mentions it being a title.

Frankly, sir, “creative dissimilarities” are all creation is. A generic idea can be passed along and mutated into hundreds of different plots. The reason there are so many suits against major studios is because LOTS of works are similar to each other. Just look at the forthcoming “Elementary” compared to BBC’s “Sherlock”. Copyright does not protect an idea, it protects the exact words you use (because really, an idea is worthless unless someone takes the time to make it into a real product).

By your definition, if I read your comic, and then several years later had an idea about a creepy carnival for a literary short story, that would be copyright violation.

No. And do not speak for me. I had a Carnival appear in the middle of the woods to take in a super natural carny on the run. Once taken into the
magic carnival it disappears. Once inside the magic carnival the character goes into a house of mirrors and sees his dead mother in every mirror. You see? But since your comment has nothing to do with HarperCollins using my mark, it is just your attempt to smear my name. Isn’t it HarperCollins that just got nailed for price fixing? At least I stood up for something I believed in. Even if you don’t. I am proud I defended my series and would and will do it again.

Also, to your question, yes I would defend you. Carnival of Souls is, as Weirdmage said, a fairly generic title. In addition, your work and Marr’s bear very little similarity, so no one could argue that your work was attempting to confuse consumers. You have a title and a circus in common, but as the California court that ruled on the heroes case said, those ideas are commonplace and widespread in culture, and therefore anyone could have them.

The irony is, that Jazan’s Wild’s series, Carnival of Souls, would have gained a lot of exposure from people looking up Melissa Marr’s book of the same name – I’d heard of Marr’s book, but not Wild’s series. He may have gained new readers for it, if he hadn’t embarked on this bizarre crusade. Now instead of benefiting from an inadvertent, coincidental connection such as sharing a title, we’re all going to remember him as THAT guy. It saddens me. I’ve come across – and purchased – several books because they came up in searches for other books with the same name. It happens. You’re really not losing out, Mr Wild. (Except that, you are now.)

Honestly, your choice to defend your trademark against HP seems pretty understandable. What I think is really leaving the bad taste in my mouth (and presumably most others, judging from the comments here) is the decision to go after reviewers. You may be perfectly within your rights to do so, but the whole thing just stinks of censorship. Clearly these reviewers stand to gain very little financially from your mark, and almost certainly were not aware of any infringement. Your frustration with a protracted battle against HP is quite understandable, but issuing C&Ds against reviewers, even while within your rights, just feels heavy handed and certainly isn’t winning you any sympathy. I’m sorry you feel such extreme measures are necessary.

Exactly! If it’s a series, the tediously litigious comic book author may have a point. If Melissa Marr’s book is just the title of the book, not of a series, (and that’s the way it seems after a mere five minutes of research) he can go swivel.

I can’t see any reference to this series being called Carnival of Souls anywhere. I have the published book – there is no reference to a series title either. He is doing this for publicity. It is interesting to note HarperCollin’s statement refers to no trademark infringement of the title of the book and not the series and since there is no series title – I don’t see the problem. It is sad because he could have gotten a boost from this but intimidating reviewers which has nothing to do with his lawsuit is beyond stupid. They are not infringing on his series or books but commenting it albeit negatively or positively. And there is no injunction on the publication of this book, so he has no right to dictate C&Ds.

You are wrong. We have several exhibits where Marr and Collins state this is her new series. So why would I be out for publicity and try since June to have the series and book change the title. Where do you get such logic. Read the suit before you attack. As to this being public… Pam was sent an email privately. I did not make this thread. And you seem perfectly fine with the fact Harper can use any registered mark they feel like. I guess in 2009 I should have predicted Marr may want my series mark in the future. Some comments here show the lack of respect for ones rights.

Can you please show me the series title of Melissa’s book? I’ve got the finalised book, and I can’t see no mention, reference or note of it on her site, Goodreads or Amazon. You don’t have the right to trademark a title if it has been widely used. From books to movies that predate and post date your comic/books. But since you claimed the series copyright and I presume its going to court – it will be up to the judge. But I think its totally unfair that you don’t respect reviewers rights to review a book by intimidating them by sending out C&D’s for a book that’s out and no court injunction.

And since you claim its about the series and there is no mention or reference of Marr’s series being called ‘Carnival of Souls’ – the first book is entitled this but there is nothing to state or suggest this is the TITLE of the series. Also she hasn’t plagiarised from your comics/book and it is set in a dystopian setting. Someone copying extracts/text or artwork – then people would definitely back you up. But a title? Which has been used widely as a trope as well in movies, shows and books – I think your case is very shakey and you are definitely arent doing yourself a favour especially since you are targeting reviewers and bloggers who love to pick up and highlight books. You are definitely harming yourself and it is sad because your series might have attracted people looking at Marr’s book.

Are you sure that “Carnival of Souls” is Marr’s new series OR that “Carnuval of Souls” is the FIRST in her new series. HUGE difference there and nullifies the trademark infringement case.

Sep12

MrBester

I would consider that Pam can do with an email whatever she chooses, whether you think it was private or not.

Sep12

Adam

A ‘Carnival of Souls’ sequel has been announced – called ‘Theatre of Deceit’ – for next year. A few bloggers have referred to the ‘Carnival of Souls series’. There appears to be no evidence, however, that Marr or Harper Collins are calling it the ‘CoS series’, just that it is a series, and that the first book in that series is ‘Carnival of Souls’. Having now read extracts of both, and looked at the Heroes case reports, I can’t help but suspect that Mr Litigious simply needs to get a life.

It is my impression that Carnival of Souls by Marr is not a series. I read where it was meant to be a standalone, but the story couldn’t fit in one book. Therefore, there will be one more. If anything, it is a collection of stories for one plot, not an ongoing series.

I’m a bit confused here… First of all, I didn’t think you could do this with titles of books/songs/movies. (Not to mention the several people that have mentioned the name is used several times elsewhere and is not exactly a unique title)

But even let’s for get about that, because the issue is that it sounds like people are upset about Jazan going after reviewers, not for going after HC. And going after them is not protecting a trademark because using the title in a review is fair use. So you would not be in danger of losing this supposed trademark or copyright if you did not threaten bloggers with C&D letters that you know are not going to want to bother with court. (I’m also curious as to whether the C&D’s went to reviews that were primarily not positive). It’s one thing to see someone post a chapter and say pull it down, but completely different to have someone review a work, labeled as “this particular authors” work — how does that infringe on a trademark? It doesn’t. Fair Use. Has any publisher of a media lost a trademark because they didn’t sue someone who used their name in a review? No. Fair Use.

Plus… For someone that talked about building up a business, it seems odd to go after reviewers who are essentially giving you free advertising. So I’d leave the bloggers and reviewers alone and worry about HC. I’m sure you’ll have your hands full there.

Having looked a bit more on Google, I’ve become a bit confused.
The comic books seem to be consistently referred to as “Jazan Wild’s Carnival of Souls”, and that is what it says on the cover of the comics. The only place where this “Jazan Wild’s” is omitted that I can see is on the novel. Interestingly the novel seems to be unavailable on Amazon, and is listed as being published 4 July 2012 (,and priced at $13.79). There’s a comic book who shares the same page on Amazon, but is clearly not the novel.
The copyright page says 2005, but I find no mention of it before 2009, when it shows up here: http://www.myebook.com/index.php?id=16000&option=ebook -With some interesting tags, and listed as “Cathegory: Comics”. And it is also given a release date of 4 July 2012 “Exclusively on Amazon.com” here. There’s however a comic book listed on Amzon as being published 5 august 2009, that has the same cover as the novel I can’t seem to find any trace of.

So, this novel doesn’t seem to have existed before Wild admitted to knowing about Marr’s novel. And I haven’t found any evidence of it actually existing now apart from the “browse inside” pages. -There’s however two verified purchases among the four reviews on Amazon. It all seems a bit mysterious to me.

Ooops, sorry I made a huge mistake. (It’s 7 am here, and I’ve been up all night.) The novel is of course available on Amazon.
But the rest still stands. The novel doesn’t seem to have existed before 4 July 2012.

Sorry to burst your bubble, but this will turn out to be unenforceable. Mark my words.

I could publish a book or series titled “Gone With The Wind”, and as long as it wasn’t a period piece set in the South during the Civil War there wouldn’t be a damn thing anyone could do or say about it.

I’ll be glad to publish a review of Harper Collins “Carnival Of Souls” and you can send me a C&D for it. I’ll promptly toss it in the trash and get on with my day.

I think I’m getting the picture:
1) Laws should be changed to get rid of trademarking words since it’s the dumbest thing in the world. If I wrote a book similar to Harry Potter and called it SsdflSKDfjase, I should get sued by JK and that’s the right way to enforce this – based on content not what it’s called. And even then, there are only a few types of stories out there. Heck, if this behavior continues, I’d like to copyright, trademark, and patent content based on human interaction.
2) Jazan Wild. I am not aware of you (not that I’m anybody) but I will now not only never look at every single work you have but I will tell this to others because you’re a fool for getting this trademark which now forces you to do stupid things like this. If you saved the money in not getting this trademark, you’d now have more customers. I’m sure there’s more content that is or will be generated that has hatred for you and your content than your actual books.
3) HarperCollins said above “‘Carnival of Souls’ has been used … since at least 1962″. So, they created content for half a century and you hired with a lawyer a few years ago. Which one has a better leg to stand on?

Trademark laws force you to sue people that infringe on your trademark. So I don’t fault you there. But I fault you for getting a trademark on such a common phrase (carnival is popular, souls is popular, guess what happens when you put them together).

If you were smart, you’d partner with the other book writer and have a press release stating the differences between the two books so there’s no confusion and giving people discounts on buying both.

Pam… do I get a cut from all this publicity? Just kidding. This has really started a great discussion about trademarks and the laws that surround them. This will be my last post so here is my position one LAST time…

Ok. In 2004 I decided to do a comic book series titled CARNIVAL OF SOULS. In 2005 I was blessed enough to have it published and it did really well. So I went on to start my own company and even had CARNIVAL OF SOULS become the #1 ebook on Blackberry for over a year.

From there I have had the series do really well on Amazon, reaching the #1 spot several times. So I decided in 2009 to register my series as a trademark. I have every right to do so. Yet in 2012 HarperCollins and Mellisa Marr, want to take my registered “CARNIVAL OF SOULS” trademark and put it on top of her new book. Which even a stand alone book is an infringement, however, it is well known that this is a “CARNIVAL OF SOULS” series. It is listed on Amazon as a series, under the hardback version of Marr’s book. It has been said in several places officially that this is a new series.

Ok, AGAIN… I am minding my own business and running my business, when a Billion dollar company, makes a decision to out and out take my series name and mark. And I am the focus of your anger? Not that kind of unethical practice?

They have no right to do this. What if I did that to them?

We contacted HarperCollins in June and asked them to stop using my series name and mark. They threatened to take my mark. They listed all kinds of other uses of the title from other classes of goods… like movies and cds and such. They said the name was common and basicily I should be ashamed for having chosen it. Even though they must now have the crappy name for their new million dollar book series. All of this treatment because I did what… protect my work with a trademark?

I have a trademark in classes 16 and 41 for novels, comic books and graphic novels. You can only trademark series, not single items. So yes, there are other CARNIVAL OF SOULS out there. The ones before my mark can stand; the ones after my mark are infringing. They want my mark. They have published a series with the title “CARNIVAL OF SOULS”
my series is called “CARNIVAL OF SOULS.” What am I missing? Should I really have never applied for a trademark, because Melissa Marr and HarperCollins may one day in the future decide they want my title? This is insanity. Place your anger where it should be… on that.

And finally as to sending out cease and desists to bloggers… here’s the facts. I sat back from June to Sept and received endless “Google Alerts” with “CARNIVAL OF SOULS” being promoted all over web. Not my “CARNIVAL OF SOULS” series but rather a trademark violated version. On Sept 10th the night before my 24th anniversary, I had had enough. I went down the “Google Alert” list and sent the cease and desists to whomever had posted my mark. No bloggers were singled out. This was to let everyone posting this book know that the “CARNIVAL OF SOULS” mark is a registered trademark that HarperCollins is knowingly and willfully violating. The bloggers are not doing a damn thing wrong. They are doing their job and got caught in the crossfire, and for that I am sorry. It is HarperCollins and Melissa Marr who have done the wrong thing since day one. And I have to defend my series.

Dear Jazan Wild: thank you for making it so easy for me and my friends to make the decision to definitely avoid any of your works and to actually get quite motivated to disuade others from buying any of your stuff.
I agree with your move to strongly protect “Carnival Of Souls”: keep it to yourself – we do not want it. At all.

I love how everyone on the internet thinks they’re an Intellectual Property Lawyer.

People, this is a legal question. Unless you’re an attorney, you cannot possibly take yourself seriously as an authority, especially when you can’t tell the difference between a Copyright and a Trademark, which are two entirely different branches of law, governed by two entirely different governmental bodies.

IP law is complex in truly Byzantian ways, so much so that lawsuits arise out of necessity often just to define it, because there’s so much grey area that determining the merits of any particular case, in all but the most obvious, is really really hard to do. It takes a court making a ruling or, more commonly, the parties involved coming to a private agreement.

What’s been said about having to police the mark to keep it is true, although I am not sure if sending C&Ds to reviewers is considered policing by the courts or not. I am not a lawyer. If Jazan has an Attorney, and that attorney advised him to send those C&Ds, then he needs to do that.

And Jazan, you’re an idiot for discussing pending legal action you’re taking openly on the internet with everyone and anyone. *Do* you have an attorney? If not *get one*. I am sure the first thing they’ll tell you to do is *shut up* and don’t talk to anyone about the case. Let your lawyer do the talking.

“Laws should be changed to get rid of trademarking words since it’s the dumbest thing in the world. If I wrote a book similar to Harry Potter and called it SsdflSKDfjase, I should get sued by JK and that’s the right way to enforce this – based on content not what it’s called. ”

But if you wrote that book, and took the same name as a pen name, how would consumers know which book they were buying, and therefore which content they were receiving?

That would kill the entire concept of brand names. Business wouldn’t be able to operate without some protections, and it’s bad for consumers, as they’d have guarantees that if they buy a can of Coke, a bottle of Heinz ketchup, a Ford Truck, a Rolex watch, or an Apple computer that they’d be getting the item they expect.

If you bought an “Apple i-Pod” and found out later that you got something quite different that merely looks the same and was called the same thing but was an inferior product, you’d probably be quite upset. Without trademarks, you have no protection to know what you are or are not buying.

Eliminating Trademarks and Tradedress law is a seriously bad idea. What would be better is if the USPTO came out with some much clearer legal definitions of the marks and their protections to eliminate the grey area in the law that requires testing via the courts today.

I have read all the comments, and so far, I have seen great points on both sides, however, the fact still remains, in the way its trademarked, and the way its used (on both sides), this is a NON issue according to the situation at hand.

Another reason not to reply to him is that he never replies to any of the posts that make very valid points, only to the oblivious troll posts or ones that attempt to make a valid point, and fail.

So if he can only reply to INVALID points, it makes him look like a winner, but if your smart enough to read the VALID points, you will notice no reply, thats shady as hell to me.

I read the entire Brief. I am a published author (Summon the heroes on amazon.com) I had the same problem in reverse. I chose a title that happened to link to an extremely well known musicians work. When I self published it went nowhere.
However, you can trademark a phrase especially in 16 and 41 if it used a series title which he has done.
Also, KISS asked him to use this title for their work. You can read about this when you Google Gene Simmons and Kiss. As for commonality that’s a straw man and everyone who brings it up should be ashamed of themselves. The USPTO decided that his marks were unique enough to merit protection. It doesn’t matter if every book written has it in it/ Unless its a series title, its just a phrase. Also, trademarks die so I am gathering most if not all are dead.
As to Buffy the vampire slayer book, Carnival of Souls isn’t the title nor the series title. Its a subheading. So there was no conflict.
As for Neil Gaiman, I bet if someone decided to make a Sandman series he would do the same thing.
Finally my opinion of this here with the reviewers is simple. He is trying to keep the conflicted material of the net. You posted the conflicting material. Was it immoral? maybe.
And finally. Sorry Jazan, the stuff is crap. Hers is crap too.
So while I defend your right to to defend your rights as granted by USPTO, I think you would have been better served by creating something else.

I think folks need to re-read his lawyer’s letter to Pam. The trademark law is pretty clear here. He trademarked a series, not one title (similar to trademarking a television series, not a single episode name). Harper has called the Carnival of Souls book the “first in the Carnival of Souls” series, which infringes on his trademark. I think it’s pretty cut & dry.

And if someone doesn’t like the USPTO law, write to your congressmen and women and get it changed. Until then, hanging this guy out on the line by his toenails for defending his trademark seems pretty silly.

You’re mostly right, except that HT has never called it the Carnival of Souls series. We know there’s a second book, and we know the name of that book, but even a quick look on Goodreads shows the series hasn’t been named yet.

My only stake in all of this is what this means for book bloggers. And for now, it means nothing to us. We all will have to wait for the final decree from the court.

We can see Melissa Marr referring to it as the Carnival of Souls series in her tumblr. She links to a Facebook page seemingly set up by HarperCollins for the “Carnival of Souls series”. It has since been taken down. Perhaps they’re going to call the series something else now (which satisfies the trademark issue, ne?).

Regardless, a C&D for the *review* is patently ridiculous. The requirement to defend your Trademark does not extend to having to defend against fair use, in the first place. In the second place, no where in Nikki’s review does she even refer to it as “the Carnival of Souls series”. It baffles me what Jazan thinks he has to defend against in this case. His beef is with HarperCollins and the author. C&Ding reviewers is frivolous.